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State v Domo - Summing Up [2015] FJHC 663; HAC158.2012 (9 September 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 158 OF 2012

STATE

V

1. NACANI DOMO
2. DAMASINO LEVI

Counsel: Mr. S. Nath for the State
Mr. R. Kumar and MsDiroiroi for the Accused

Dates of Trial: 01 September– 04 September, 2015
Date of Summing up: 09th September, 2015

SUMMING UP

Name of the victim is suppressed. She is referred to as SN.

Madam Assessors and Gentleman Assessor:

1. We have now reached the final phase of this case. The law requires me, as the Judge who presided over this trial to sum up the case to you. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing up of the case very carefully and attentively. This will enable you to form your individual opinion as to the facts in accordance with the law with regard to the innocence or guilt of the accused person.

2. I will direct you on matters of law which you must accept and act upon.

3. On matters of facts however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions.

4. In other words you are the Judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

5. The counsel for Prosecution and the Accused made submissions to you about the facts of this case. That is their duty as the Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

6. You will not be asked to give reasons for your opinions. Your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions. But I will give them the greatest weight when I come to deliver my judgment.

7. On the matter of proof, I must direct you as a matter of law, that the Accused personsare innocent until they are proved guilty. The burden of proving their guilt rests on the Prosecution and never shifts.

8. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the Accused guilty, you must be satisfied so that you are sure of their guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty.

9. Your opinions must be solely and exclusively upon the evidence which you have heard in this Court and upon nothing else. You must disregard anything you might have heard or read about this case, outside of this Courtroom. Your duty is to apply the law as I explain to you to the evidence you have heard in the course of this trial.

10. Your duty is to find the facts based on the evidence and apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

11. As Assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.

12. In assessing the evidence, you are at liberty to accept the whole of the witness's evidence or part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable.

13. In this case the Prosecution and the Defence have agreed on certain facts. The agreed facts are part of evidence. You should accept those agreed facts as accurate and truth. They are of course an important part of the case.

14. The agreed facts of this case are:

I. It is agreed that Nacani Domo and Damasino Levi are the defendants in this case.

II. It is agreed that the victim in this case is SN.

III. It is agreed that the two defendants are from Koroboya in Ba.

IV. It is agreed that both defendants are known to the victim in this case.

V. It is agreed that the matter was reported to the police and both accused persons were interviewed and charged accordingly.

VI. It is agreed that the main issue in this case would be whether or not the victim had consented to the two in having sexual intercourse with her.

15. The charges against the Accused are as follows:

First Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NACANI DOMO on the 28th day of September 2012 at Ba in the Western Division, had carnal knowledge with a woman namely SN without her consent.

Second Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

DAMASINO LEVI on the 28th day of September 2012 at Ba in the Western Division, had carnal knowledge with a woman namely SN without her consent.

Third Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NACANI DOMO on the 28th day of September 2012 at Ba in the Western Division, had carnal knowledge with a woman namely SN without her consent.

Fourth Count
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

DAMASINO LEVI on the 28th day of September 2012 at Ba in the Western Division, had carnal knowledge with a woman namely SN without her consent.

16. I will now deal with the elements of the offence. A person rapes another person if:

(a) The person has carnal knowledge with or of the other person without other person's consent; or

(b) The person penetrates the vulva, vagina or anus of other person to any extent with a thing or a part of the person's body that is not a penis without other person's consent; or

(c) The person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent.

17. The elements of the offence of Rape in this case are that:

a. each Accused,

b. penetrated the vagina of SN with his penis

c. without her consent

18. Other parts of the offence are irrelevant to the facts of this case.

19. Consent as defined in Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a person with a necessary mental capacity to give such consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.

20. Proof can be established only through evidence. Evidence can be direct evidence that is the evidence of a person who saw it or by a victim who saw, heard and felt the offence being committed. In this case, for example, the victim was a witness who offered direct evidence as to what she saw, heard or felt.

21. Apart from the elements of the offence, the identity of the person who is alleged to have committed the offence is very important. There must be positive evidence beyond reasonable doubt on identification of the accused-person that connects him to the offence that he is alleged to have committed.

22. I will now deal with the summary of evidence in this case.

Case for the Prosecution

23. First witness for the Prosecution was the victim of this case, 23 years old SN. In 2012, she was a mother of one child living with his brother in Vunitogotogo in Ba. She described the incident happened on 28th September 2012.

24. On that day, she was attending a traditional Fijian ceremony called 'Tevutevu' at her aunt Elenoa's place in Naboutini. People who had gathered there were having grog, singing and dancing till late night. Having attended the ceremony, SN walked back home in Vunitogotogo. AdiAlesi and Kelera accompanied her to a certain distance, dropped her on the road and went back to their homes leaving SN behind.

25. On her way back, she met Kali. Hewanted to have a talk with her. She said 'no'. Then she met Nacani Domo, Damasino, Esira, and Moisese. They all wanted to have a talk with her but she refused.

26. Moisese and Esira took her to a guava tree made her lie down on the grass. Moisese was holding on to her thighs and Esira undressed her. Esira inserted his penis into her vagina. Then Moisese took his turn and did the same thing. She could not react as she was weak. Then came Tesoni followed by Ratoto. They took their turns and had sexual intercourse with her.

27. Then, Domo came and sucked her breasts, licked her vagina and inserted his penis into her vagina. She could not react as she was weak. She did not like what Domo was doing and told him to stop, but he kept on doing.

28. Finally, it was Damasino's turn. First he sucked her breasts and licked her vagina. Then he inserted his penis into her vagina. She did not like what he was doing and told him to stop, but he kept on doing.

29. When they had finished, SN resumed her journey home. Domo and Damasino were following her and wanted to accompany her. She told them that she could go home alone. But they took her under a bamboo tree. Domo made her forcibly lie down, holding onto her hands and legs, sucked her breasts, licked her vagina and inserted his penis into her vagina.

30. After Domo, Damasino came and sucked her breasts, licked her vagina and inserted his penis into her vagina. She did not like what they were doing to her.

31. SN could not shout as they closed her mouth and warned her not to shout.

32. She reported the incident to her aunty, Adi Alesi on 2nd November 2012. SN said that she did not report the incident to anybody before because the Accused had threatened to punch her if she were to report the incident to anybody.

33. In cross examination, SN said that the Accused were the DJ's at Elenoa's' Tevutevu' and were still playing music when she left after midnight. She also said that the Accused are related to her.

34. She admitted giving a statement to Police on 2nd of November 2012.

35. SN denied the boys who were already having sex with her having told Domo and Damasino that she agreed to have sex with them. She also denied giving her consent to Domo and Damasino to have sex with her.

36. She admitted talking to the Accused while they were walking towards Vunitogotogo after the second incident under the bamboo tree. But she denied joking and laughing with them. She also denied hiding behind guava tree when she heard other people coming that way.

37. Under cross examination, SN reiterated that she was taken towards the bamboo tree forcibly. She further said that the ground was not covered with her sulu or anything when the Accused had sex with her. She admitted that the bamboo twigs or branches had not caused any injuries to her. Closest house to that bamboo tree was located about fifty meters away but she did not go to that house and asked for help.

38. She admitted that there was a rumor circulating in the village that she had had sex with boys.SN also admitted her aunty Adi Alesi having inquired about that rumor when she visited her in November 2012. But she denied making up a story of a rape as a cover up.

39. In her re-examination SN confirmed that the 'Tevutevu' and the rape incident happened on 28th of September.

40. Adi Alesi, SN's small aunty was the next witness for the Prosecution. She confirmed that when she visited SN in 2nd of November 2012, three aunties were questioning her about an incident. She asked SN as to why she was crying. SN had informed her that some boys from Koroboya had punched her legs, made her lay down, pulled down her trousers and had sexual intercourse with her against her will. Names of the boys which included the names of the Accused who had done those acts on SN had also been divulged to her.

41. She admitted forgetting to tell the Police everything what SN had told her when she made the statement on 1st February 2013.

42. Next witness for the Prosecution was Ratuniu Kaukilagi. He described the incident that had happened in September, 2012when he attended his small auntie's 'Tevutevu'. SN had requested him to accompany her to Vunitogotogo. On their way they had met Esira and Moi standing beside the road. They had pulled SN under a guava tree.

43. When they were pulling SN, Damasino and Domo had shouted at Esira and Moiand asked them to take her there. Then they had taken off her clothes and held both of her hands, made her lie down and raped her while she was struggling. Tesoni, Moi, Sairusi, Esira, Domo and Damasi all raped her. Esira asked him also to join. He refused saying she is his small aunty. Esira threatened him. He had no option but to join them.

44. In cross examination, Ratuniu admitted that he had sex with SN but was not charged for rape.

45. Prosecution called Qaranivalu Sivo Naisau as its last witness. He described the cautioned interview of both the Accused held at the Ba Police Station on 5th November 2012 with regard to an alleged rape incident in Koroboya Village. He recognized the interview statements of the Accused and tendered them in evidence marked as PE.1 and PE.2.

46. He said that both Domo and Damasino had not denied in their cautioned interview statements that the incident had happened on 28th September 2012. Both of them had denied having had forcible sexual intercourse and had maintained that SN had agreed to sexual intercourse.

47. When the Prosecution closedits case, you heard me explain the Accused's rights in Defence. Their rights were explained not because the Accused had to prove anything. But I am required by law to do so.

Case for the Defence

48. Defence called two witnesses and the Accused themselves testified under oath.

49. Elenoa was the first witness for the Defence. She said that 'tevutevu' ceremony which was attended by SNwas held at her house on 31st of August 2012, and not on 28th September 2012. She further said that SN was singing and dancing with others having consumed Kava while the Accused were on the DJ. She said that Damasino is her cousin brother and Domo is her own brother. She denied having lied to Court but admitted that whatever she said in Court was said to protect her relatives.

50. Defence called EsiraVuda next. He said that the 'tevutevu' ceremony was held at his house in Naboutinion 31st of August, during school vacation. When the function was going on Moisese, Sairusi, Dominiko, Iowane and Ratuniu were having a talk on the road. They met SN walking down the road. Then he asked her if he and his friends could sleep with her to which she agreed. Then they all had sexual intercourse with her beside the road.

51. When they were having sexual intercourse, Domo and Damasino came and joined them. They also had sexual intercourse with SN. He did not recall if Domo and Damasino had asked him or SN anything. She did not speak or do anything.

52. DominikoTaitusi gave evidence next. When he was walking down the road with Esira, Moi and Pela after the ceremony, he met SN on the road. Esira first talked toher and then had sexual intercourse with her. He was followed by Tesoni, Sairusi, Damasino, Domo and Moi. SN did not object, she agreed to have sex with all of them.

53. First Accused Nacani Domo gave evidence next. He said that he was in charge of the 'tevutevu' ceremony held on 31st August, 2012 at his younger sister Elenoa's place in Naboutini. He was the DJ in the evening function.

54. When the function was over, he left around 2 a.m. with Damasino and Nalati. On their way home he heard people talking and laughing near the Koroboya junction. They went there to see what's going on. They saw SN lying naked on the ground. Esira, Moi, Sairusi, Iowane, Ratuniu and Taitusi were taking turns in having sexual intercourse with SN. He asked them whether she consented to what they were doing. They said 'yes'. Then he asked SN whether she consented. She answered in the affirmative. He then asked her whether he too can have sexual intercourse with her. She said 'yes'. Damasino went first and had sexual intercourse with her. Then Domo went and had sexual intercourse with her.

55. After that SN stood up.She looked normal and walked with them laughing, joking and playing. He approached SN and asked her again for sexual intercourse. She agreed. They went towards a bamboo tree. SN spread her sulu on the ground. Damasino had sexual intercourse with her. When Damasino had finished Domo took his turn. After that they were heading for Vunitogotogo settlement. They could hear voice of the people on the road. They went behind a bamboo tree to cover themselves up until the people on the road went past them. He denied having sexual intercourse with SN without her consent.

56. Last witness for the Defence was the 2nd Accused Damasino. He also stated a similar story as was told by the 1st Accused. He denied the charge and said that he had sexual intercourse only with the consent of SN.

57. I have summarized evidence which I thought important to you in light of arguments of the Counsels of both parties. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should remind yourselves of all that evidence and from your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence.

58. The Prosecution based its case mainly on the evidence of the Victim, SN. If you are satisfied that the evidence she gave in Court is reliable and trustworthy you can safely act upon her evidence in coming to your conclusion.

59. Please remember, there is no rule in Fiji for you to look for corroboration of victim's story to bring home an opinion of guilt in a Rape case. The case can stand or fall on the testimony of victim depending on how you are going to look at her evidence.

60. You may, however, consider whether there are items of evidence to support the victim's evidence if you think that it is safe to look for such supporting evidence to test the consistency and credibility of the victim's story of Rape. You can consider documentary and other oral evidence led in the trial in this regard.

61. If you are satisfied that SN had told the truth and her evidence is believable, then you have to consider whether the Prosecution has discharged its burden and proved each element of the Count in the Information beyond reasonable doubt.

Analysis

62. Both the Accused had admitted in their cautioned interview statements PE.1 and PE.2 that they had sexual intercourse with SN. Giving evidence in Court they maintained and further confirmed their earlier position. It was also agreed, as an agreed fact that the main issue of this case would be whether or not SN had consented in having sexual intercourse with her.

63. The Prosecution alleges that the sexual intercourse happened without SN's consent. Accused say it happened with her consent. The only issue to be decided in this case therefore is whether the prosecution had proved, beyond reasonable doubt, that the sexual intercourse took place without SN's consent.

64. I must repeat hear what the law says in respect of 'consent'. Consent as defined in Section 206 of the Crimes Decree, means the consent freely and voluntarily given by a woman with a necessary mental capacity to give such consent. Submission without physical resistance by a person to an act of another person shall not alone constitute consent. You must evaluate evidence in light of this legal framework. The submission of free choice to repeated demands is not to be confused with consent. For example, submission achieved by persistent psychological coercion so that free choice was overborne will not amount to consent freely given. On the other hand, reluctant but free agreement is not the same thing as submission, and still consent, even if reluctantly given. It is for you to decide whether, in the context of this particular scenario, consent was freely given by SN.

65. You have to consider how probable or improbable is the evidence given by SN. That is whether what she was talking about in his or her evidence is probable in the circumstances of the case. Or, whether what the witness talked about in her evidence is improbable given the circumstances of the case. There is another important factor that you should consider. That is whether she had behaved in a natural or rational way in the circumstances that she was talking of.

66. SN said that she did not scream or yell for help when she was being taken by the Accused and also when she was being raped. You might wonder why she did not scream or yell if she was taken forcibly and raped by eight people without her consent. She said that she was weak and her mouth was closed. She also said that she was threatened not to shout. The incident had happened after midnight in a hilly and remote area. You consider whether she had a reasonable cause not to resist, scream or complain.

67. You have to be cautious here. You must not make comparisons and come to your conclusion on the basis of general behavior expected of a woman in such a situation. Consent has a particular legal meaning. You are expected to analyze evidence presented in this case deeply in light of the Section 206 of the Crimes Decree, and see whether she gave her consent freely and voluntarily and whether she possessed necessary mental capacity to give such consent at that time. Submission without physical resistance by a person to an act of another person shall not alone constitute consent. The offence charged requires proof that the Complainant did not consent and the Accused did not reasonably believe that the Complainant was consenting. The Offence may or may not be accompanied by force or the threat of force, but please note that it is no part of the Prosecution's obligation to prove that the Accused used force or the threat of force.

68. You have to consider whether there is delay in making a prompt complaint to someone or to an authority or to police on the first available opportunity about the incident that is alleged to have occurred. If there is a delay that may give room to make-up a story, which in turn could affect reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. If there is a delay, you should look whether there is a reasonable explanation to such delay.

69. SN had not complained or reported the incident to anybody soon after the incident. She admitted that she first reported the incident to her aunty Adi Alesi on 2nd of November 2012. She told Adi Alesi only when her aunties were questioning her about the rumor that was being circulated in the village. According to the Prosecution version the incident had happened on 28th September 2012. Defence took up the position that the incident happened on 31st August 2012. Even if you believe the version of the Prosecution, she had reported the matter a month after the incident. There is a considerable delay in reporting.

70. Failure on her part to complain soon after the incident is not necessarily consistent with consensual sexual intercourse.It is only a matter of evaluating consistencyof her evidence and credibility. You have to see whether she has given acceptable and legitimate reason for not complaining soon after the incident.SN's explanation for the delay was that Accused had threatened to punch her if she were to report the incident to anybody. It is up to you to form your own opinion on her explanation. It has been said on behalf of the Defendant that the fact SN did not report what have happened to her as soon as possible makes it less likely that the complaint she eventually made was true. Whether that is so in this particular case is a matter for you to consider and resolve. However, it would be wrong to assume that every person who has been the victim of a sexual assault will report it as soon as possible. The experience of the Courts is that victims of sexual offences can react to the trauma in different ways. Some, in distress or anger, may complain to the first person they see. Others would react with shame, or fear or shock or confusion, do not complain or go to Police or any other authority for some time. It takes a while for self confidence to re-assert itself. There is, in other words no classic or typical response. A late complaint does not necessarily signify a false complaint, anymore than an immediate complaint necessarily demonstrates a true complain. It's a matter for you to determine whether, in the case of this particular complainant, the lateness of the complaint, such as it is, assists you at all and, if so, what weight you attach to it. You need to consider what the complainant herself said about her experience and her reaction to it.

71. I must reiterate hear that if you are satisfied that the evidence SN gave in Court is reliable and trustworthy you can safely act upon her evidence in coming to your conclusion even in the absence of evidence of recent complaint. The case can stand or fall on the testimony of victim depending on how you are going to look at her evidence.

72. Ladies and gentleman, you find in society some smart ladies who would resist and complain of the slightest injustice that may have been caused to them. On the other hand you may have come across ignorant, naïve, passive and powerless women. You decide to which category SN belonged. You must decide whether you are sure SN did not consent to sexual intercourse with the accused. That will require an assessment by you of her evidence.I must emphasize that the assessment is for you to make. However, it is of paramount importance that you do not bring to that assessment any preconceived views or stereotypes as to how a witness in a trial such as this should react to the experience. Any person who has been raped, especially in a case like this where the victimis alleged to have been raped by eight people, will have undergone trauma whether the accused were known to her or not. It is impossible to predict how that individual will react, either in the days following, or when speaking publically about it in Court or at the Police Station. The experience of the Courts is that those who have been victims of rape react differently to the task of speaking about it in evidence.

73. Some rape victims display obvious signs of distress, others will not. The reason for this is that every person has his or her own way of coping. Conversely, it does not follow that signs of distress by the witness confirms the truth and accuracy of the evidence given. In other words demeanor in Court is not necessarily a clue to the truth of the witness's account. It all depends on the character and personality of the individual concern. You watched SN giving evidence in Court. What was her demeanor like? How did she react to being cross examined and re-examined? Was she evasive? How she conducted herself generally in Court? It is up to you to decide whether you could accept her version or not.

74. During the course of SN's evidence it was suggested to her that she could have struggled, shouted or otherwise objected to what the Accused were doing. In his closing argument Defence Counsel has submitted to you that her failure to protest, demonstrates that she was not telling the truth when she told you that, far from consenting, she was petrified with fear and froze. This is an argument which you should consider with care when you do, you should not assume that there is any classic or typical response to an unwelcome demand for sexual intercourse. The experience of the Courts is that people who are being subjected to nonconsensual sexual activity may respond in variety of different ways.

75. Ladies and Gentleman, you have to consider how consistent SN was in her evidence. That is whether she was telling a story on the same lines without variations and contradictions. You must see whether she is shown to have given a different version elsewhere. Defence Counsel questioned about previous statement she had given to Police. If you find previous statements to be contradictory or inconsistent with what she said in Court, you must consider whether such contradictions are material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. You can apply the same test to evaluate evidence of other witnesses as well.

76. If it is shown to you that a witness has made a different statement or given a different version on some point, you must then consider whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points given the mental status of the witness at a particular point of time.

77. You must remember that merely because there is a difference, variation contradiction or an omission in the evidence on a particular point or points that would not make witness a liar. You must consider overall evidence of the witness, the demeanor, the way he/she faced the questions etc. in deciding witness's credibility.

78. Now I wish to direct you on evidence of an accomplice. An accomplice is a person who participates in the actual crime charged, whether as principal or accessory before or after that. An accomplice may have an agenda or a reason to give evidence for the prosecution implicating the accused. The law says it is dangerous to convict an accused on the evidence of an accomplice alone, and without corroboration from other sources. Corroboration is some independent evidence, which implicate the accused in the commission of the offence.

79. Ratuniu Kaukilagi was called by the Prosecution as an eye witness. He said that SN was pulled; her cloths removed and raped forcibly. He admitted that he also had sexual intercourse with SN even though he was not charged for rape.He conceded his participation in the commission of the crime. I must direct you as a matter of law that you must not rely upon his evidence if you are not satisfied that his evidence is corroborated by an independent source.

80. You have to consider whether SN had any motive or reason to fabricate this type of an allegation against the Accused. Version of the Defence was that she had made up a story of rape to protect her name when arumor was being circulated about her having sex with boys. It is up to you to form your own opinion on that.

81. You watched the Accused giving evidence in court. What was their demeanor like? How did they react to being cross examined and re-examined? Were they evasive? How they conducted themselves generally in Court?

82. I must remind you that when the Accused elected to give evidence they assumed no onus of proof. That remains on the Prosecution throughout. Their evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate. You will generally find that an accused gives an innocent explanation to escape criminal liability.

83. Witnesses called by the Defence and the Accused themselves told us that SN had not resisted and she agreed to have sexual intercourse. According to them she had given her consent to have sexual intercourse with two Accused and six other people one after the other. All of them had taken turns and have had sexual intercourse with her. According to the version of the Defence, after having had sexual intercourse repeatedly with so many people, SN had consented to have sexual intercourse again under a bamboo tree.

84. It is up to you to decide whether you could accept the version of the Defence and thatversion is sufficient to establish a reasonable doubt in the prosecution case. If you accept the version of the Accused then you must not find them guilty. Even if you reject the version of the Defence still the Prosecution should prove its case beyond reasonable doubt.

85. Remember, the burden to prove the Accused's guilt beyond reasonable doubt lies with the Prosecution throughout the trial, and never shifts to the Accused, at any stage of the trial. The Accused are not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt.

86. If you accept the Prosecution version of events, and you are satisfied that the Prosecution has proved the case in respect of each Accused beyond reasonable doubt, so that you are sure of Accused's guilt of each charge you must find them guilty of each charge. If you do not accept the Prosecution's version of events, and you are not satisfied beyond reasonable doubt, so that you are not sure of the Accused's guilt, you must find them not guilty as charged.

87. Ladies and Gentleman Assessor it is for you to determine against each Accused separately on a consideration of all the evidence and applying the directions that I have given to you.

88. That concludes my summing up of the law and the evidence in this particular trial. We have now reached the stage where you must deliberate together and form your individual opinions on whether the charges have been proved against either or both of the Accused. I remind you that you must consider the case against each Accused separately. On your return you will be asked to separately state in Court your opinion in respect of each accused in turn as to whether he is guilty or not guilty of the charge.

89. Your possible opinion is as follows:

1st Count - 1stAccused guilty or not guilty?

2nd Count - 2nd Accused guilty or not guilty?

3rdCount - 1stAccused guilty or not guilty?

4th Count - 2ndAccused guilty or not guilty?

90. Would you please now retire to consider your opinion? When you have made your decisions would you please advise the Court Officer and the Court will reconvene to receive your opinions?

91. Any re-directions?

Aruna Aluthge
JUDGE

AT LAUTOKA
On 09th September 2015

Solicitors: Office of the Director of Public Prosecution for the State
Office of the Legal Aid Commission for the Accused